Exhibit 3.2
POOLING AGREEMENT
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THIS AGREEMENT (the "Agreement") dated as of this _____ day of May, 1999, by and
among HARTCO LTD, a Nevada corporation, (the "Issuer"), INTERWEST TRANSFER
COMPANY, INC. (the "Pooling Agent") and the undersigned shareholders of the
Issuer (the "Shareholders").
WITNESSETH:
WHEREAS the Shareholders are the holders of, have subscribed for, or have agreed
to purchase shares (the "Shares") of the Issuer as set forth on Schedule A
attached hereto and incorporated herein by reference ("Schedule A"); and
WHEREAS the Shareholders deem it to be in their best interests and that of the
Issuer to place the Shares in a pool with the Pooling Agent on the terms and
conditions herein contained.
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. This Agreement shall be effective as of the date hereof (the "Effective
Date") and shall continue until terminated according to the provisions
hereof.
2. The Shareholders agree with the Issuer and the Pooling Agent that they will
deliver or cause to be delivered to the Pooling Agent the certificates for
their Shares as set out in Schedule A to be held by the Pooling Agent and
released on a pro-rata basis as provided in Schedule A.
3. The Shareholders agree that the Board of Directors of the Issuer, may in
its absolute and sole discretion, revise the release provisions of Schedule
A to permit an early release of the Shares from the pool on a pro rata
basis if the Board of Directors deems it to be in the best interests of the
Issuer and all of the Shareholders. The decision of the Board of Directors
in this regard shall be final and deemed to be in the best interests of all
of the shareholders of the Issuer.
4. The Shareholders further agree that the 400,000 shares of the Issuer held
by Gatham Properties S.A., a Bahamian International Business Corporation
("Gatham") are not subject to the terms and conditions of this Agreement
and may be disposed of at any time.
5. The Shareholders shall be entitled to a letter or receipt from the Pooling
Agent stating the number of Shares represented by certificates held for
them by the Pooling Agent subject to the terms of this Agreement, but such
letter or receipt shall not be assignable.
6. The Shareholders shall not sell, deal in, assign, transfer in any manner
whatsoever or agree to sell, deal in, assign or transfer in any manner
whatsoever any of the Shares or beneficial ownership of or any interest in
them; and the Pooling Agent shall not accept or acknowledge any transfer,
assignment, declaration of trust or any other document evidencing a change
in legal or beneficial ownership of or interest in the Shares, except as
may be required by reason of the death or bankruptcy of any one or more of
the Shareholders, in which case the Pooling Agent shall hold the
certificates for these shares subject to this Agreement for whatever person
or
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persons, firm or corporation that may become legally entitled thereto.
7. The Shareholders agree that the Shares are being pooled in the best
interests of the Issuer and its Shareholders and have not been pooled due
to duress or undue influence.
8. This Agreement shall enure to the benefit of and be binding upon the
parties hereto, and each of their heirs, executors, administrators,
successors and permitted assigns.
9. This Agreement may be executed in several parts in the same form and such
parts so executed shall together constitute one original Agreement and such
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this Agreement.
10. Each of the signatories hereby agree that new shareholders of the Issuer
may agree to be bound as parties to this Agreement from time to time and
pool their shareholdings in the Issuer from time to time by amendments
hereto which need only be signed by the Issuer, the Pooling Agent and the
shareholders joining the Agreement from time to time.
11. The parties hereto agree that in consideration of the Pooling Agent
agreeing to act as Pooling Agent as aforesaid, the Issuer and the
Shareholders do hereby covenant and agree from time to time and at all
times hereafter, to save, defend and keep harmless and fully indemnify the
Pooling Agent, its successors and assigns, from and against all loss,
costs, charges, damages and expenses which the Pooling Agent, its
successors and assigns may at any time or times hereafter bear, sustain,
suffer or be put to for or by reason or on account of its acting as Pooling
Agent pursuant to this Agreement.
12. It is further agreed by and between the parties hereto and, without
restricting the foregoing indemnity, that in case proceedings should
hereafter be taken in any Court respecting the Shares hereby pooled, the
Pooling Agent shall not be obliged to defend any such action or submit its
rights to the Court until it shall have been indemnified by other good and
sufficient security in addition to the indemnity given against its costs of
such proceedings.
13. This Agreement shall be construed in accordance with the laws of the State
of Washington.
14. In any action brought to enforce this Agreement, or to seek damages for
breach thereof, the prevailing party shall be entitled to recover a
reasonable attorney's fee (including a reasonable attorney's fee on any
appeal thereof) and reasonable costs of litigation in addition to any other
award or decree granted or given by the court.
15. This Agreement supersedes all prior agreements of the parties, constitutes
the entire agreement and understanding between the parties and may only be
modified or amended by a subsequent written agreement executed by all
parties.
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IN WITNESS WHEREOF the Issuer, the Pooling Agent, and the Shareholders, have
executed this Agreement as of the day and year first above written.
SIGNED, SEALED AND DELIVERED by the HARTCO LTD.
Issuer in the presence of:
___________________________________ ______________________________________
Witness Signature Per:__________________________________
___________________________________
Address
___________________________________
City and Postal Code
SIGNED, SEALED AND DELIVERED by the
Issuer in the presence of: ______________________________________
___________________________________ Signature
Witness Signature ______________________________________
___________________________________ Print Name of Shareholder
Address ______________________________________
___________________________________ Address
City and Postal Code ______________________________________
City and Postal Code
SIGNED, SEALED AND DELIVERED by the
Issuer in the presence of: ______________________________________
___________________________________ Signature
Witness Signature ______________________________________
___________________________________ Print Name of Shareholder
Address ______________________________________
___________________________________ Address
City and Postal Code ______________________________________
City and Postal Code
SIGNED, SEALED AND DELIVERED by the
Issuer in the presence of: ______________________________________
___________________________________ Signature
Witness Signature ______________________________________
___________________________________ Print Name of Shareholder
Address ______________________________________
___________________________________ Address
City and Postal Code ______________________________________
City and Postal Code
SIGNED, SEALED AND DELIVERED by the
Issuer in the presence of: ______________________________________
___________________________________ Signature
Witness Signature ______________________________________
___________________________________ Print Name of Shareholder
Address ______________________________________
___________________________________ Address
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City and Postal Code ______________________________________
City and Postal Code
SCHEDULE "A"
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The Shares shall be released as to:
a. 1/4 of the Shares on December 1, 1999 (the "First Release Date");
b. 1/4 of the Shares three months following the First Release Date;
c. 1/4 of the Shares six months following the First Release Date; and
d. 1/4 of the Shares nine months following the First Release Date;
except that where the number of pooled shares of any Shareholder as at a Release
Date are less than or equal to 50,000, then all such shares of that Shareholder
shall be released.
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NAME OF SHAREHOLDER # OF SHARES POOLED
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Antiqua Bay Holdings Ltd. 231,066
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Rockaway Resources Inc. 631,066
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Bottom Line Management Inc. 570,994
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Xxxxxxxx Enterprises Ltd. 630,633
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Media Resources International Inc. 347,088
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Millennium Crescent Corp. 347,087
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Number 2 Corporate Ventures 400,000
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Newthan Fund Investment Ltd. 75,634
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Levert Development Ltd. 75,635
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Number 4 Corporate Ventures Inc. 7,167
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Number 5 Corporate Ventures Inc. 5,734
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Number 6 Corporate Ventures Inc. 50,000
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Number 9 Corporate Ventures Inc. 33,011
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Los Cabos Land Company 373,463
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Number 11 Corporate Ventures Inc. 160,204
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Number 12 Corporate Ventures Inc. 5,734
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Number 13 Corporate Ventures Inc. 5,734
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Number 14 Corporate Ventures Inc. 28,669
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Number 15 Corporate Ventures Inc. 18,676
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Number 16 Corporate Ventures Inc. 41,125
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Number 17 Corporate Ventures Inc. 41,125
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Number 18 Corporate Ventures Inc. 41,125
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Number 19 Corporate Ventures Inc. 41,125
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Atlas Software Production Inc. 32,142
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Number 21 Corporate Ventures Inc. 15,000
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Number 22 Corporate Ventures Inc. 5,734
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Mindquake Software Inc. 48,249
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AHF Ventures Inc. 373,463
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Zao Enterprises Inc. 43,003
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Xxxxx-Xxxx LTD. 400,000
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Denali Foundation 370,000
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Exeter Management & Trading Ltd. 500,000
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Round Rock Management Inc. 150,314
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6,500,000
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FORM OF
POOLING AMENDMENT AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of this _____ day of ______, ____, by
and among HARTCO LTD, a Nevada corporation, (the "Issuer"), INTERWEST TRANSFER
COMPANY, INC. (the "Pooling Agent") and the undersigned shareholders of the
Issuer (the "Shareholders").
WHEREAS:
A. The Shareholder has agreed to purchase _________ shares (the "Shares") of
the Issuer;
B. The Issuer together with the Pooling Agent have entered into a Pooling
Agreement dated May ____, 1999, with certain shareholders of the Issuer
(the "Pooling Agreement") providing for the pooling of the shares of the
Issuer owned by those shareholders and their subsequent release in
accordance with the following release provisions:
a. 1/4 of the Shares on December 1, 1999 (the "First Release Date");
b. 1/4 of the Shares three months following the First Release Date;
c. 1/4 of the Shares six months following the First Release Date; and
d. 1/4 of the Shares nine months following the First Release Date;
subject to amendment by the Board of Directors of the Issuer to permit earlier
release on a pro-rata basis, except that where the number of pooled shares of
any Shareholder as at a Release Date are less than or equal to 50,000, then all
such shares of that Shareholder shall be released; and
C. The Shareholder desires to place the Shares in pool with the Pooling Agent
on the terms and conditions of Pooling Agreement which provides that new
shareholders of the Issuer may agree to be bound as parties to the Pooling
Agreement from time to time and pool their shareholdings in the Issuer from
time to time by amendments to the Pooling Agreement which need only be
signed by the Issuer, the Pooling Agent and the shareholders joining the
Pooling Agreement from time to time.
NOW THEREFORE in further consideration of the mutual covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. The Shareholder hereby agrees with the Issuer and the Pooling Agent to be
bound as a party to the Pooling Agreement and to pool the Shares thereunder
and for this purpose to deliver or cause to be delivered to the Pooling
Agent certificates for his or her Shares in the Issuer to be held by the
Pooling Agent and released as provided in the Pooling Agreement.
2. This Agreement shall enure to the benefit of and be binding upon the
parties hereto, their and each of their heirs, executors, administrators,
successors and permitted assigns.
3. This Agreement may be executed in several parts in the same form and such
parts so executed shall together constitute one original Agreement and such
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this Agree-
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ment.
4. The parties hereto agree that in consideration of the Pooling Agent
agreeing to act as Pooling Agent as aforesaid, the Issuer and the
Shareholder do hereby covenant and agree from time to time and at all times
hereafter, well and truly to save, defend and keep harmless and fully
indemnify the Pooling Agent, its successors and assigns, from and against
all loss, costs, charges, damages and expenses which the said Pooling
Agent, its successors and assigns may at any time or times hereafter bear,
sustain, suffer or be put to for or by reason or on account of its acting
as Pooling Agent pursuant to this Agreement and the Pooling Agreement.
IN WITNESS WHEREOF the Issuer, the Pooling Agent, and the Shareholder, have
executed these presents as of the day and year first above written.
SIGNED, SEALED AND DELIVERED by the HARTCO LTD.
Issuer in the presence of:
___________________________________ __________________________________
Witness Signature Per:______________________________
___________________________________
Address
___________________________________
City and Postal Code
SIGNED, SEALED AND DELIVERED by the
Issuer in the presence of: __________________________________
___________________________________ Signature
Witness Signature __________________________________
___________________________________ Print Name of Shareholder
Address __________________________________
___________________________________ Address
City and Postal Code __________________________________
City and Postal Code
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